Donald v. Pruitt

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 19, 2021
• Docket: 20-1435
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 19, 2021 _________________________________ Christopher M. Wolpert Clerk of Court LARON ANTONIO DONALD,

Petitioner - Appellant,

v. No. 20-1435 (D.C. No. 1:20-CV-01326-LTB-GPG) SEAN PRUITT, Warden; COLORADO (D. Colo.) ATTORNEY GENERAL,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges. _________________________________

Laron Antonio Donald, an inmate proceeding pro se, 1 seeks a certificate of

appealability (COA) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2254 petition. We deny Donald a COA.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (citation omitted). But we won’t serve as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). BACKGROUND

On December 5, 2014, a jury in El Paso County District Court convicted Donald

on “numerous charges based on an incident in which he kidnapped, beat, and repeatedly

raped his girlfriend, the victim.” R. at 182 (citation omitted). Donald appealed his

conviction, and on December 7, 2017, the Colorado Court of Appeals affirmed the

judgment of conviction in part, vacated it in part, and remanded it in part. Specifically,

the court rejected Donald’s first three challenges: (1) denial of a fair trial,

(2) prosecutorial misconduct, and (3) cumulative error. But it reversed on the fourth

challenge of merger, ruling that the trial court had violated Donald’s constitutional right

to be free from double jeopardy. It concluded that the trial court had erred in imposing

five sexual-assault convictions based on two acts and two kidnapping convictions based

on one act. The Colorado Court of Appeals then remanded for correction of the judgment

of conviction to reflect the counts that should have been merged (what it called

“correction of the mittimus”). 2 R. at 165. On September 17, 2018, the Colorado Supreme

Court denied Donald’s Petition for Writ of Certiorari on his direct appeal.

In December 2018, Donald filed in the state trial court a motion to issue a new

mittimus. The following month, he filed a motion for sentence reconsideration under

Colo. R. Crim. P. 35(b). On January 31, 2019, the trial court issued two orders—one

issuing a new mittimus and the other denying in part the Rule 35(b) motion. Donald

2 According to Black’s Law Dictionary, a “mittimus” is “[a] court order or warrant directing a jailer to detain a person until ordered otherwise.” Mittimus, Black’s Law Dictionary (11th ed. 2019). We use “mittimus” in relation to Donald’s post-conviction sentence correction consistent with the state court proceedings. 2 appealed neither of these orders. Instead, two weeks later, he filed in the trial court a

motion to reconsider the denial of his Rule 35(b) motion. The trial court denied this

motion on March 8, 2019.

On May 11, 2020, Donald filed a federal petition for writ of habeas corpus under

28 U.S.C. § 2254 in the District of Colorado. Shortly after, he filed an amended petition.

In it, he asserted that his federal constitutional rights had been infringed in four ways:

(1) the trial court’s disallowing him from responding to a juror’s question violated his

rights to a fair trial and to present evidence in his defense; (2) prosecutorial misconduct

during closing argument violated his right to a fair trial; (3) the cumulative effect of the

errors in claims one and two violated his rights generally; and (4) his convictions on four

counts of sexual assault based on two acts violated his right to be free from double

jeopardy.

Subsequently, the magistrate judge ordered Respondents to file a pre-answer

response addressing two affirmative defenses: (1) whether Donald’s § 2254 habeas

petition was timely under 28 U.S.C. § 2244(d), including whether Donald’s diligence

justified equitable tolling; and (2) whether Donald had exhausted his claims in state court

as required under 28 U.S.C. § 2254(b)(1)(A). The magistrate judge also instructed

Respondents to notify the court if they were not intending to raise these affirmative

defenses.

Respondents filed a combined pre-answer response, with relevant state-court

exhibits attached. In it, they conceded that Donald had exhausted his state-court

remedies. Relevant to this appeal, they argued that the § 2254 petition was barred by the

3 one-year limitation period contained in 28 U.S.C. § 2244(d), enacted under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132,

110 Stat. 1214. In support, they explained that the limitations period ran from the date

Donald’s state conviction became final but was tolled during properly filed state post-

conviction or collateral-review proceedings. They argued that Donald’s conviction had

become final for AEDPA purposes on December 17, 2018, which was the ninetieth day

after the Colorado Supreme Court’s denial of Donald’s petition for certiorari and the last

day on which Donald could have sought certiorari in the United States Supreme Court.

After that date, they argued, the statute of limitations ran for 37 days before it was tolled

from January 24, 2019 through March 21, 2019 for Donald’s post-conviction proceeding.

And after that, they argued, his limitations period ran unabated for 327 days and expired

on February 11, 2020—rendering his § 2254 petition filed on May 11, 2020 untimely.

On October 9, 2020, the magistrate judge recommended that Donald’s amended

§ 2254 petition be dismissed as untimely. But in his recommendation, he applied a more

generous timeline to Donald’s petition than had Respondents. Rather than counting the

37 days between January 24, 2019 and March 21, 2019 against Donald’s limitation

period, the magistrate judge concluded that the limitations period had not commenced

until the period to appeal Donald’s amended mittimus had expired. He found that

Donald’s conviction had become final on March 21, 2019, the last date on which Donald

could appeal the entry of his amended mittimus to the Colorado Court of Appeals.

The magistrate judge then addressed two issues related to AEDPA’s one-year

limitation period. First, he assessed Donald’s two reconsideration motions and noted that

4 Donald had filed his original Rule 35(b) motion before the trial court issued the amended

mittimus. So the time in which that motion had been pending did not count against

Donald’s limitations period because his judgment had not yet become final. Relatedly, he

considered whether Donald’s second motion for reconsideration (filed two weeks after

the district court issued the amended mittimus) tolled the limitations period. Though the

magistrate judge was unconvinced that this motion tolled the limitation period under

§ 2244(d), he assumed that it did and determined that the last date to appeal the denial of

that motion was on April 26, 2019. Because Donald had not filed his federal habeas

petition until May 11, 2020 (more than 365 days later), his application was untimely.

Second, the magistrate judge assessed equitable tolling. He rejected Donald’s

argument that equitable tolling applied because COVID-19 had made the law library less

accessible. The magistrate judge found that Donald had failed to allege with any

specificity what steps he had taken to pursue his claim diligently before the COVID-19

restrictions went into place and how, despite them, he had still been able to file his

original pleading in May 2020 and his Pre-Answer Response in September 2020. So the

magistrate judge ruled that Donald’s untimely petition did not warrant equitable tolling.

Donald then filed objections to the magistrate judge’s recommendation, arguing

that he had timely filed his petition and, alternatively, that he was entitled to equitable

tolling. Nevertheless, the district court issued an order adopting the magistrate judge’s

recommendation, denying Donald’s petition for habeas corpus, declining to issue a COA,

and denying without prejudice leave for Donald to proceed in forma pauperis on appeal.

Donald asks us to grant him a COA. For the following reasons, we deny his request.

5 DISCUSSION

I. Legal Standards

Before Donald’s appeal may proceed, he must obtain a COA. Slack v.

McDaniel, 529 U.S. 473, 484–85 (2000). To do so, he must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as

here, the district court has rejected the petitioner’s habeas application on procedural

grounds, the petitioner must show (1) “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right,” and

(2) “that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484. “Each component of [this]

showing is part of a threshold inquiry.” Id. at 485. Thus, if a petitioner cannot make a

showing on the procedural issue, we need not address the constitutional component.

See id.

AEDPA provides a one-year limitation period for habeas petitions filed by persons

in custody under the authority of a state-court judgment. 28 U.S.C. § 2244(d)(1). That

limitation period generally runs from the date the state-court judgment becomes final by

conclusion of direct review or from the date when the time to seek such review expires.

Id. § 2244(d)(1)(A). But the time during which a proper state petition for post-conviction

relief or other collateral review is pending does not count against AEDPA’s limitation

period. Id. § 2244(d)(2); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (noting

6 that “state petitions for post-conviction relief filed within the one year allowed by

AEDPA will toll the statute of limitations.” (citation omitted)).

Equitable tolling may provide relief from AEDPA’s one-year limitation period.

Holland v. Florida, 560 U.S. 631, 634 (2010). A petitioner is entitled to equitable tolling

if he can show (1) that he has diligently pursued his rights, and (2) that extraordinary

circumstances blocked him from timely filing. Id. at 649 (citation omitted).

II. Analysis

Having reviewed the record and Donald’s arguments, for three reasons we

conclude that the district court was correct to invoke AEDPA’s one-year statute of

limitations to deny a COA.

First, as the district court concluded, Donald’s state-court judgment became final

no later than April 26, 2019, the last date on which Donald could have appealed the trial

court’s March 8, 2019 denial of his second reconsideration motion. And it wasn’t until

May 11, 2020—more than a year later—that Donald filed his § 2254 petition in federal

court.

Second, Donald is not entitled to equitable tolling based on his allegedly limited

access to the law library in the wake of COVID-19. The district court correctly concluded

that Donald hasn’t shown that he was pursuing his rights diligently throughout the one-

year window, including before the COVID-19 restrictions went into place. See, e.g.,

United States v. Barnes, No. 18-CR-0154-CVE, 2020 WL 4550389, at *2 (N.D. Okla.

Aug. 6, 2020) (“Even assuming that a lockdown due to the COVID-19 pandemic delayed

defendant’s ability to file his motion, it does not explain the more than one-year delay.

7 COVID-19 measures have been in effect since March 2020, and defendant could have

filed his motion long before March 2020.”), certificate of appealability denied, 831

F. App’x 425 (10th Cir. 2020) (unpublished); United States v. Henry, No. 2:17-CR-

00180, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (“The bottom line is that

the COVID-19 pandemic does not automatically warrant equitable tolling for any

petitioner who seeks it on that basis. The petitioner must establish that he was

pursuing his rights diligently and that the COVID-19 pandemic specifically

prevented him from filing his motion.” (citation omitted)), appeal docketed,

No. 21-1285 (3d Cir. Feb. 18, 2021); Howard v. United States, No. 4:20-CV-1632

JAR, 2021 WL 409841, at *2 (E.D. Mo. Feb. 5, 2021) (rejecting that COVID-19

pandemic prevented movant from fully presenting his case because “movant makes no

effort to demonstrate that he has been diligently pursuing his rights” and “does not claim

to have taken any action to pursue his rights” (citations omitted)), appeal docketed,

No. 21-1592 (8th Cir. Mar. 15, 2021).

Third, though Donald now argues that COVID restrictions prevented him from

meeting with another inmate for help in preparing and filing his legal documents,

prisoners do not have “an abstract, freestanding right to a law library or legal assistance.”

Garcia v. Hatch, 343 F. App’x 316, 318 (10th Cir. 2009) (unpublished) (quoting Lewis v.

Casey, 518 U.S. 343, 351 (1996)). Donald has not explained why he was not diligent for

the nine months before COVID restrictions were implemented. Therefore, Donald hasn’t

made the requisite showing that he is due an exception to the statutory bar.

8 In sum, no reasonable jurist could conclude that the district court erred in

dismissing the petition. See Slack, 529 U.S. at 484 (“Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude . . . that the district court erred in dismissing the

petition.”).

CONCLUSION

We deny Donald a COA and deny his petition to proceed in forma pauperis

because he has not presented a reasoned non-frivolous argument for appeal.

Entered for the Court

Gregory A. Phillips Circuit Judge